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2008-UP-427 - Nobles v. Nobles

THIS OPINION HAS NO PRECEDENTIAL VALUE.  IT SHOULD NOT BE CITED OR RELIED ON AS PRECEDENT IN ANY PROCEEDING EXCEPT AS PROVIDED BY RULE 239(d)(2), SCACR.

THE STATE OF SOUTH CAROLINA
In The Court of Appeals

Carie W. Nobles, Respondent,

v.

Jon Christopher Nobles, Appellant.


Appeal From Horry County
 H. E. Bonnoitt, Jr., Family Court Judge
 Mary E. Buchan, Family Court Judge


Unpublished Opinion No. 2008-UP-427
Submitted June 2, 2008 – Filed July 23, 2008   


AFFIRMED


John S. Nichols, of Columbia, for Appellant.

Frederick L. Harris, of Myrtle Beach; and George M. Hearn, Jr., of Conway, for Respondent.

PER CURIAM: Jon Christopher Nobles (Husband) appeals the family court order granting Carie Nobles (Wife) a divorce, arguing the family court erred in its determination of marital property, valuation of special equity interests, and equitable division of the marital estate.  We affirm.[1]

FACTS

I.  Background

Husband and Wife were high school sweethearts and became engaged while attending Clemson University.  Husband graduated from Clemson in December 1993, and obtained employment as a credit manager for Heilig-Myers Furniture in Columbia, South Carolina.  Husband and Wife married on May 20, 1995.  Shortly thereafter, Husband was transferred to Griffin, Georgia, as a Heilig-Myers store manager.  Wife graduated from Clemson in December 1995, and joined Husband in Griffin.  In July 1996, Husband was transferred to Jacksonville, Florida, where he eventually managed three Heilig-Myers stores and earned approximately $100,000 per year.  Wife also obtained employment in Jacksonville at the Florida Department of Health as a health educator earning $28,000 per year.

In early 2001, Husband lost his job with Heilig-Myers when the retail chain filed for bankruptcy.  Consequently, Husband and Wife returned to South Carolina to open a franchise furniture store in Myrtle Beach.  In March 2001, while making plans to leave Jacksonville, Wife became pregnant.  Approximately five months later, the parties moved to North Myrtle Beach and their first child, Sarah, was born in November 2001.  Following the birth of Sarah, Husband and Wife moved into a new home with financial contributions provided by Wife’s parents. 

II.  Noble Enterprises of the Carolinas

With the proceeds from the sale of their home in Jacksonville and Husband’s 401(k), the parties opened Norwalk: The Furniture Idea (Norwalk), a franchise, under the name Noble Enterprises of the Carolinas, LLC, the franchisee.  Based upon his management experience in the furniture business, Husband served as Norwalk’s managing partner.  Husband, his mother and father, and Wife each owned a twenty-five percent interest in the business.  While Wife occasionally assisted with the business, she was primarily responsible for caring for the couple’s first child. 

After Norwalk opened, Husband began staying away from home and became less dedicated to his role as managing partner.  Consequently, Wife hired Pamela Burris as sales manager for Norwalk.  Due to Husband’s increasing unavailability, Burris became the de facto manager of the store.  By December 2005, Husband was working as a waiter and was no longer associated with Norwalk.  Shortly thereafter, Norwalk ceased operation.

III.  Termination of Marriage

Husband began to withdraw from Wife in December 2003, arriving home from work no earlier than 8:00 p.m. and sometimes as late as 11:00 p.m.  While Wife expressed concern regarding Husband’s absence, he claimed work demanded the majority of his time.  Husband showed little emotion and continued to withdraw from the marriage when Wife became pregnant with the couple’s second child in April 2004.  Husband began devoting his time to conducting private, secretive activities on his computer, and would shut down the computer when Wife entered the room.  Although Husband denied having an affair, Wife discovered Husband was visiting various pornographic websites and corresponding with at least three women twenty to thirty times a day in various internet chat rooms.  Wife also found suspicious text messages of an explicit nature on Husband’s phone and later found out Husband had rented a private post office box.  Soon thereafter, Husband began refusing Wife’s phone calls during the day and would not return home until Wife had gone to bed.  Husband’s appearance also began to change dramatically.  Husband joined Gold’s Gym, hired a personal trainer, and spent a minimum of three hours every day at the gym even though his business was failing.  Husband’s financial excesses included an ongoing health club membership, massages, manicures, hair appointments, car washes, and lawn care.

On March 21, 2005, Wife confronted Husband regarding their marital problems.  In response, Husband requested Wife file for divorce and the parties subsequently separated.  Wife hired a private investigator who obtained proof of Husband’s relationship with Allison Sides, a fellow member of Gold’s Gym.  Wife and Wife’s father also observed Husband on several occasions with Sides, including dinner dates and other social gatherings.  According to Husband, he engaged in sexual relations with Sides only after the parties’ separation. 

IV.  Post-Separation and Subsequent Proceedings

Since the separation, Wife and the couple’s children have continued to reside in the marital home.  Wife found employment and earns $2,092 gross per month.  Wife pays approximately $70 per month for the children’s medical and dental insurance and $953 per month for daycare.  Immediately after the separation, Husband resided with his parents and continued to work as a waiter.  However, Husband later moved to Jacksonville, Florida with his present girlfriend, Danelle Metz, where he still waits tables at a local restaurant.

Following Husband’s relocation to Jacksonville, Wife brought an action against Husband seeking a divorce on the ground of adultery, an award of separate support and maintenance, use and possession of the marital home, custody of the parties’ two children, child support, alimony, attorneys’ fees, and restraining orders against disposing of assets and exposing the children to his romantic relationships.  In response, Husband counterclaimed for a mutual bar to alimony, equitable apportionment of the marital estate, a co-parenting arrangement, and an award of attorneys’ fees and court costs. 

On August 22, 2005, the family court issued a temporary order awarding Wife primary custody of the children and use of the marital home.  The temporary order also required Husband pay child support in the amount of $198 per month based upon his imputed income of $4,000.  In addition, Husband was ordered to pay $2,000 per month for Wife’s separate support and maintenance as well as $10,000 towards Wife’s attorneys’ fees.

Approximately one year later, the family court issued a final order awarding Wife a divorce on the ground of adultery and granting her primary custody of the parties’ two children.  In determining child support, the family court imputed a monthly income of $4,000 to Husband finding he was voluntarily underemployed and capable of earning more given his skills, experience, and expertise.  Based upon Husband’s imputed earnings of $4,000 per month, the family court ordered Husband to pay $1,114 in monthly child support.  With regards to equitable division, the family court valued the marital home at $230,000 and distributed sixty percent of the marital property to Wife.  In dividing the marital debt, the family court also noted Wife faced potential liability to the former family business based on an action brought against her by Noble Enterprises.  However, the family court ordered Husband to indemnify Wife against any judgment awarded in the pending lawsuit, finding any debt incurred by Noble Enterprises was “a direct result of Husband’s failure to dedicate himself to the business and the marriage . . . which he abandoned.”  The family court further ordered Husband to pay Wife’s attorneys’ fees in the amount of $12,800.  Subsequently, Husband filed a Rule 59(e), SCRCP, motion, which was denied.  This appeal followed.

STANDARD OF REVIEW

In an appeal from the family court, the appellate court has the authority to find the facts in accordance with its own view of the preponderance of the evidence.  Ex parte Morris, 367 S.C. 56, 61, 624 S.E.2d 649, 652 (2006).  However, this broad scope of review does not require the appellate court to disregard the findings of the family court.  Wooten v. Wooten, 364 S.C. 532, 540, 615 S.E.2d 98, 102 (2005).  “Neither is the appellate court required to ignore the fact that the family court, who saw and heard the witnesses, was in a better position to evaluate their credibility and assign comparative weight to their testimony.”  Id. at 540, 615 S.E.2d at 102.  

LAW/ANALYSIS

I.  Husband’s Income

Husband argues the family court erred in imputing $4,000 per month income to him.  Specifically, Husband asserts the family court erred in finding he was voluntarily underemployed and capable of earning $4,000 per month based upon his skill, experience, and expertise.  We disagree. 

Our courts have held imputing income to a party who is voluntarily unemployed or underemployed is proper.  Patel v. Patel, 359 S.C. 515, 532, 599 S.E.2d 114, 123 (2004); Penny v. Green, 357 S.C. 583, 592, 594 S.E.2d 171, 175 (Ct. App. 2004).  To prove voluntary underemployment, “a parent seeking to impute income to the other parent need not establish a bad faith motivation to lower a support obligation.”  Arnal v. Arnal, 371 S.C. 10, 13, 636 S.E.2d 864, 866 (2006).  When “imput[ing] income to a parent who is unemployed or underemployed, the court should determine the employment potential and probable earning level of the parent based on that parent’s recent work history, occupational qualifications, and prevailing job opportunities and earning levels in the community.”  Engle v. Engle, 343 S.C. 444, 449, 539 S.E.2d 712, 714 (Ct. App. 2000); 27 S.C. Code Ann. Regs. 114-4720(A)(5)(B) (Supp. 2007).  “Where a parent voluntarily lessens his or her earning capacity, this Court will closely scrutinize the facts to determine the parent’s earning potential, rather than the parent’s actual income.”  Id.; see Camp v. Camp, 269 S.C. 173, 174-5, 236 S.E.2d 814, 815 (1977); Robinson v. Tyson, 319 S.C. 360, 363, 461 S.E.2d 397, 399 (Ct. App. 1995); see also Chastain v. Chastain, 289 S.C. 281, 283, 346 S.E.2d 33, 35 (Ct. App. 1986) (finding father with master’s degree voluntarily removed himself from the job market to attend law school and his earning potential was properly considered in calculating child support).

Here, Husband earned approximately $100,000 per year managing three Heilig-Myers stores.  The parties testified Husband earned at least $4,000 per month while he worked at Norwalk.  Also, Husband filed a loan application indicating he was earning $5,000 per month.  After Husband abandoned Norwalk, he began working as a waiter in Myrtle Beach.  A short time later, Husband moved to Florida with his current girlfriend where he also works as a waiter.  Husband testified he has applied for jobs, but has not found one because he is only looking for upper-level management jobs.  Husband has the ability to get a higher paying job than working as a part-time waiter because of his experience and knowledge of the furniture business; however, he has chosen to remain underemployed.  Therefore, the family court did not err by imputing an income of $4,000 per month to Husband.                    

II.  Marital Home

Husband avers the family court erred in valuing the martial home at $230,000.  We disagree.

The family court has broad discretion in determining how marital property is to be valued and distributed; therefore, the court may use any reasonable means to divide the property equitably, and its judgment will be disturbed only where an abuse of discretion is found.  Wooten, 364 S.C. at 541-45, 615 S.E.2d at 102-05.  In reviewing the family court’s equitable apportionment of marital property, an appellate court’s role is to examine the fairness of the apportionment as a whole.  Bragg v. Bragg, 347 S.C. 16, 24, 553 S.E.2d 251, 255 (Ct. App. 2001).  Generally, an appellate court will affirm the family court if it can be determined the judge addressed the factors under the marital property statute sufficiently for the appellate court to conclude the judge was cognizant of the statutory factors.  Jenkins v. Jenkins, 345 S.C. 88, 100, 545 S.E.2d 531, 537 (Ct. App. 2001); see S.C. Code Ann. § 20-7-472 (1985).  Further, the family court may accept the valuation of one party over another, and the court’s valuation of marital property will be affirmed if it is within the range of evidence presented.  Woodward v. Woodward, 294 S.C. 210, 215, 363 S.E.2d 413, 416 (Ct. App. 1987). 

At trial, Wife and her father testified the house was worth about $230,000.  Also, Husband listed the house as being worth $230,000 on refinancing documents.  Husband did not present any evidence the house was worth more than $230,000; therefore, Husband, after making no effort in valuing the marital home, cannot now argue the family court’s determination is unsupported by the evidence.  See Hough v. Hough, 312 S.C. 344, 347, 440 S.E.2d 387, 389 (Ct. App. 1994) (finding because Husband failed to offer values for certain household goods at trial, he could not appeal the family court’s valuation of those goods).  Furthermore, Husband bears the burden in demonstrating the family court committed reversible error.  See Honea v. Honea, 292 S.C. 456, 458, 357 S.E.2d 191, 192 (Ct. App. 1987) (explaining the burden is on appellant to show the family court committed reversible error, and a party cannot sit back at trial without offering proof, then come to the appellate court complaining of the insufficiency of evidence to support the family court’s findings).  However, Husband provides no evidence that conclusively demonstrates the family court’s findings are incorrect.  Even assuming the family court erred in its valuation of the marital home, Husband fails to establish the error was prejudicial to him.  Cox v. Cox, 290 S.C. 245, 248, 349 S.E.2d 92, 93 (Ct. App. 1986) (stating a party cannot complain of an error that his own conduct has induced).  Therefore, the family court did not err by determining the marital home was worth $230,000.    

III.  Equitable Division

Husband maintains the family court erred in distributing sixty percent of the marital property to Wife.  We disagree.

“The division of marital property is within the discretion of the family court judge and the judge’s decision will not be disturbed on appeal absent an abuse of discretion.”  Craig v. Craig, 365 S.C. 285, 290, 617 S.E.2d 359, 361 (2005).  Section 20-7-472 of the South Carolina Code (Supp. 2007) provides fifteen factors for the family court to consider in apportioning marital property and affords the family court with the discretion to give weight to each of these factors “as it finds appropriate.”  “On appeal, this court looks to the overall fairness of the apportionment and it is irrelevant that this court might have weighed specific factors differently than the family court.”  Greene v. Greene, 351 S.C. 329, 340, 569 S.E.2d 393, 399 (Ct. App. 2002).  Additionally, “[w]hile there is certainly no recognized presumption in favor of a fifty-fifty division, we approve equal division as an appropriate starting point for a family court judge attempting to divide an estate of a long-term marriage.”  Doe v. Doe, 370 S.C. 206, 214, 634 S.E.2d 51, 56 (Ct. App. 2006); see Avery v. Avery, 370 S.C. 304, 311, 634 S.E.2d 668, 672 (Ct. App. 2006).  However, “this equal division of marital assets can . . . be altered in favor of one spouse depending on the circumstances of each case.”  Doe v. Doe, 370 S.C. 206, 215, 634 S.E.2d 51, 56 (Ct. App. 2006).

In this case, even though Husband and Wife were married for ten years, the family court found, and we agree, Husband’s adultery caused the breakup of the marriage, and thus, is an appropriate consideration for equitable apportionment.  See id. (holding wife’s adultery caused the breakup of the marriage, and thus, was an appropriate consideration for equitable apportionment); Greene, 351 S.C. at 341, 569 S.E.2d at 400 (finding the facts and circumstances of the case, including Wife’s marital misconduct, rendered the equal division of marital assets fair and reasonable).  Husband’s adultery also caused him to abandon Norwalk, which adversely affected the parties’ economic circumstances and the value of their marital estate.  Additionally, in dividing the estate, the family court took into consideration that Wife has custody of the couple’s two children.  Therefore, the division was not inequitable and the family court did not err in awarding Wife sixty percent of the marital property.

IV.  Indemnity

Husband contends the family court lacked jurisdiction to order him to indemnify Wife against any judgment awarded in the lawsuit brought by Noble Enterprises.  We disagree.

“For purposes of equitable distribution, a ‘marital debt’ is a debt incurred for the joint benefit of the parties regardless of whether the parties are legally liable or whether one party is individually liable.”  Wooten, 364 S.C. at 546, 615 S.E.2d at 105.  Section 20-7-472(13) of the South Carolina Code (Supp. 2007) creates a rebuttable presumption that a debt of either spouse incurred prior to the beginning of marital litigation is a marital debt and must be factored in the totality of equitable apportionment.  Hickum v. Hickum, 320 S.C. 97, 102, 463 S.E.2d 321, 324 (Ct. App. 1995).  “The burden of proving a debt is nonmarital rests upon the party who makes such an assertion.”  Id. at 103, 463 S.E.2d at 324. 

Here, the record clearly indicates Wife’s liability to the corporation arose during the marriage because Norwalk was formed as a family business.  Accordingly, the family court had jurisdiction to identify and apportion this martial debt under its general powers to equitably divide a marital estate.  Nevertheless, Husband maintains the family court erred in awarding indemnification because Wife failed to request such relief in her pleadings.  However, this issue is not preserved for review because Husband failed to raise it in his Rule 59(e), SCRCP, motion.  See Staubes v. City of Folly Beach, 339 S.C. 406, 412, 529 S.E.2d 543, 546 (2000) (“It is well-settled that an issue cannot be raised for the first time on appeal, but must have been raised to and ruled upon by the trial court to be preserved for appellate review.”).  Therefore, the family court did not err by ordering Husband to indemnify Wife against any judgment awarded against her. 

V.  Attorneys’ Fees

Husband asserts the family court erred in awarding Wife attorneys’ fees in the amount of $12,800.  We disagree.

The family court is authorized by statute to award attorney’s fees in conjunction with marital litigation.  See S.C. Code Ann. § 20-7-420(2) (Supp. 2007).  When determining whether to award attorney’s fees, the following factors should be considered: (1) the party’s ability to pay his or her own attorney’s fee; (2) the parties’ respective financial conditions; and (3) effect of the attorney’s fee on each party’s standard of living.  Glasscock v. Glasscock, 304 S.C. 158, 161 n.1, 403 S.E.2d 313, 315 n.1 (1991).  If the court determines attorney’s fees are warranted, the court should consider six factors when determining the amount to award: (1) the nature, extent, and difficulty of the case; (2) the time necessarily devoted to the case; (3) counsel’s professional standing; (4) the contingency of compensation; (5) the beneficial results obtained; and (6) the customary legal fees for similar services.  Id.  “The decision to award attorney’s fees is a matter within the sound discretion of the trial judge and the award will not be reversed on appeal absent an abuse of discretion.”  Marquez v. Caudill, 376 S.C. 229, 246, 656 S.E.2d 737, 745 (2008).

In this case, the family court found Wife “has no ability to pay her attorney’s fees while the Husband, having represented himself and with a very substantial earning potential, can afford to pay attorney’s fees.”  Further, the family court thoroughly analyzed each of the factors outlined above and detailed its findings in its final order.  The court’s findings are further supported by the affidavits of Wife’s counsel submitted to the family court and contained in the record.  Accordingly, we find no abuse of discretion in the family court’s award of attorneys’ fees to Wife.

CONCLUSION

Therefore, the family court’s order is hereby

AFFIRMED.

SHORT and KONDUROS, JJ., and CURETON, A.J. concur.


[1] We decide this case without oral argument pursuant to Rule 215, SCACR.